Citation Nr: 0208543
Decision Date: 07/29/02 Archive Date: 08/02/02
DOCKET NO. 98-00 094A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for left leg disability.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Joseph A. Rose, Associate Counsel
INTRODUCTION
The veteran had active duty service from July 1942 to
November 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1997 rating decision by
the Waco, Texas, Regional Office (RO) of the Department of
Veterans Affairs (VA). A notice of disagreement was received
in October 1997, a statement of the case was issued in
December 1997, and a substantive appeal was received in
January 1998.
Although the issue of entitlement to service connection for
bilateral hearing loss was also initially on appeal, this
benefit was granted by rating action in June 1998.
Accordingly, that issue is no longer in appellate status.
FINDINGS OF FACT
1. Injury to the left lower extremity and foot during
service was acute and transitory in nature and resolved
without any residual disability.
2. Current disabilities of the left lower extremity,
including arthritis of the left knee and left ankle, were not
manifested during the veteran's active duty service or for
many years thereafter.
CONCLUSION OF LAW
Left leg disability was not incurred in or aggravated by the
veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107
(West 1991 and Supp. 2001); 38 C.F.R. § 3.303 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
Initially, the Board notes that on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000), now codified at
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001).
This newly enacted legislation provides, among other things,
for notice and assistance to claimants under certain
circumstances. VA has issued final rules to amend
adjudication regulations to implement the provisions of VCAA.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
The intended effect of the new regulations is to establish
clear guidelines consistent with the intent of Congress
regarding the timing and the scope of assistance VA will
provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim. Where laws or regulations change
after a claim has been filed or reopened and before the
administrative or judicial process has been concluded, the
version most favorable to the appellant will apply unless
Congress provided otherwise or has permitted the Secretary of
Veterans Affairs to do otherwise and the Secretary has done
so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991).
After reviewing the claims folder, the Board finds that there
has been substantial compliance with the assistance
provisions set forth in the new law and regulation. The
record in this case includes service medical records, VA
examinations in January 1998 and March 2001, and VA hospital
and outpatient records. Significantly, no additional
pertinent evidence has been identified by the claimant as
relevant to the issue on appeal. Under these circumstances,
no further action is necessary to assist the claimant with
the claim.
Furthermore, the claimant has been notified of the applicable
laws and regulations which set forth the criteria for
entitlement to service connection for a left leg injury. The
discussions in the rating decisions, statement of the case,
and supplemental statements of the case have informed the
claimant of the information and evidence necessary to warrant
entitlement to the benefit sought. The Board therefore finds
that the notice requirements of the new law and regulation
have been met.
The Board has reviewed the facts of this case in light of
VCAA and the new VCAA regulations. As discussed above, VA
has made all reasonable efforts to assist the claimant in the
development of the claim and has notified the claimant of the
information and evidence necessary to substantiate the claim.
Consequently, the case need not be referred to the claimant
or the claimant's representative for further argument as the
Board's consideration of the new law and new regulations in
the first instance does not prejudice the claimant. See
generally Sutton v. Brown, 9 Vet.App. 553 (1996); Bernard v.
Brown, 4 Vet.App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992).
Under the circumstances of this case, where there has been
substantial compliance with the new legislation and the new
implementing regulation, a remand would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
claimant are to be avoided).
Service Connection
The issue before the Board involves a claim of entitlement to
service connection for left leg injury. Applicable law
provides that service connection will be granted if it is
shown that the veteran suffers from disability resulting from
an injury suffered or disease contracted in line of duty, or
for aggravation of a preexisting injury suffered or disease
contracted in line of duty, in active service. 38 U.S.C.A.
§ 1110. 38 C.F.R. § 3.303. That an injury occurred in
service alone is not enough; there must be chronic disability
resulting from that injury. If there is no showing of a
resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity. 38 C.F.R. § 3.303(b).
Additionally, for veteran's who have served 90 days or more
of active service during a war period or after December 31,
1946, certain chronic disabilities, such as arthritis, are
presumed to have been incurred in service if manifest to a
compensable degree within one year of discharge from service.
38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
The veteran's essential argument is that he suffers from
current left leg disability which is related to injury during
his military service. Although service medical records do
not document any such injury during service, the veteran has
submitted information which suggests that the injury was
suffered during a combat situation in May 1945. Accordingly,
pursuant to 38 U.S.C.A. § 1154(b) the Board finds that the
veteran did suffer an injury to the left lower extremity
during service despite the lack of service medical records
showing treatment for such injury.
The Board notes that service medical records also do not
document any treatment subsequent to the time of the injury.
Significantly, no defects of the left lower extremity were
reported at the time of separation examination in November
1945. VA medical records show that the veteran was
hospitalized in April 1946 for cellulitis of the left foot
and leg. The remainder of post-service evidence does not
document pertinent complaints or treatment until the 1990's.
After reviewing the record, the Board must conclude that the
preponderance of the evidence is against a finding that any
current disorder(s) of the left lower extremity are in any
manner related to the inservice injury. It appears from the
record that the injury to the left lower extremity suffered
in May 1945 was essentially acute in nature. The veteran was
treated for cellulitis in March and April 1946, just a few
months after his discharge from service. However, a record
documenting that treatment includes a notation that an
abscess of the left foot was cured and that cellulitis of the
left foot was cured. Then the record is essentially silent
for supporting evidence of a continuity of pertinent
symptomatology for many years thereafter. In sum, even
assuming that there was some symptomatology associated with
the inservice injury, there is nevertheless no persuasive
evidence of a continuity of symptomatology after service to
link any current disorder(s) of the left lower extremity to
the inservice injury. Further, while there is evidence that
the veteran currently suffers from arthritis of the left knee
and left ankle, these disorders were manifested many years
after discharge from service and there is therefore no basis
for an award of service connection on a presumptive basis.
While the Board has considered the veteran's statements, it
does not appear that he is medically trained to offer any
opinion as to causation. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992) (laypersons may be competent to
provide an eyewitness account of a veteran's visible
symptoms, but they are not capable of offering opinions as to
medical matters). As such, after reviewing the totality of
the relevant evidence, the Board is compelled to conclude
that the preponderance of such evidence is against
entitlement to service connection for a left leg disorder at
this time.
ORDER
The appeal is denied.
ALAN S. PEEVY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.